20092 research outputs found
Sort by
Racial Profiling and the Rule of Law: A Reply
No full textTHIS VOLUME OF THE OSGOODE HALL LAW JOURNAL (OHLJ) contains two articles—and two replies—that explore racial profiling and the law. This academic exchange comes at a crucial moment. In Attorney General of Québec v Luamba (“Luamba”), the Court of Appeal of Quebec affirmed that the statutory police power to conduct roving traffic stops is unconstitutional because it results in arbitrary detentions and unconstitutional discrimination, neither of which were justifiable in a free and democratic society
‘Not the Usual Gig’: The Personal Scope(s) of Application of Directive 2024/2831 on Improving Working Conditions in Platform Work
No full textThis article examines the complex and innovative personal scope of the EU Platform Work Directive 2024/2831, highlighting its dual framing around the concepts of ‘platform workers’ and the broader category of ‘persons performing platform work’. The authors explore how the Directive partially departs from traditional binary distinctions between employees and self-employed persons by introducing a more nuanced regulatory approach anchored in both labour law and data protection law. The article analyses the scope of key provisions of the Directive, showing how it confers many protections beyond the confines of the employment relationship. It critically evaluates the potential interpretive tensions between Articles 4 and 5 and underscores the Directive’s expansive redefinition of platform work. In doing so, the article positions the Directive as a paradigm shift in EU social regulation – one that embraces a universalistic vision of labour rights grounded in the reality of personal work rather than contractual form and employment status. The authors also reflect on the implications for future EU regulation and international standard-setting processes, particularly those led by the ILO
Legal Feasibility of Uniform International Commercial Intellectual Property Terms (INCOIPTERMS) in International Trade Contracts by Modeling INCOTERMS
No full textIn today\u27s global landscape, protecting intellectual property in international commercial contracts is of paramount importance. Addressing concerns and establishing clear terms for intellectual property protection is crucial due to the prevalence of infringements and varying interpretations. The International Chamber of Commerce (ICC) has taken a significant step by introducing Incoterms within the framework of international goods sales. These commercial terms play a major role in international trade law, extending beyond mere contractual regulations. On one hand, they reflect commercial customs, and on the other, they precisely define the rights, obligations, and duties of the involved parties to prevent disputes and differing interpretations in contracts related to the sale of goods.
Despite differences in standards and nature, Incoterms modeling can play a significant role in shaping international commercial intellectual property terms (IncoIPterms). Not only can they prevent disputes and varying interpretations concerning intellectual property, but they also facilitate international trade and ensure commercial security by establishing terms that transcend jurisdictional boundaries.
Nevertheless, despite the diversity of issues in the field of intellectual property law and the principle of territoriality in intellectual property rights, it is possible to formulate international commercial intellectual property terms to prevent disputes and varying interpretations arising from differences in national laws. This can be achieved by considering existing legal interpretations and commercial customs in intellectual property contracts, including the doctrine of exhaustion of rights and the distinction between the creation and enforcement stages of rights
Indigenous Governance and the Charter: What Can Indigenous Constitutionalism Offer?
No full textThe question of whether the Charter should apply to Indigenous governance is often presented in terms of a contest between Indigenous self-determination and protections for vulnerable individuals. The two judgments applying the Charter in the Supreme Court of Canada’s decision in Dickson v. Vuntut Gwitchin First Nation exemplify this dichotomy. This approach, however, reflects a false dilemma; it overlooks Indigenous constitutionalism’s ability to resolve the kinds of issues that the Charter aims to resolve, but without sacrificing Indigenous self-determination. To illustrate this point, this article applies one form of Indigenous constitutionalism— Anishinaabe constitutionalism grounded within an Anishinaabe lifeworld—to the fact scenario in Dickson v. Vuntut Gwitchin First Nation, recognizing that this decision is a precedent with application to Indigenous peoples generally. In so doing, the article discusses the different forms of legal authority to which the Charter and Anishinaabe constitutionalism respond respectively, namely, coercive authority and persuasive authority, as well as their respective conditions of legitimacy. Finally, the article addresses the assumption that Indigenous governance today seems to employ mainly coercive authority, by identifying Canadian law as a significant source of coercive legal structures which are imposed on Indigenous governance
Book Review - Beyond Banks: Technology, Regulation and the Future of Money, Dan Awrey, (Princeton and Oxford: Princeton University Press, 2024), 292 + viii pp., $48 CAD
No full text
Chaire de recherche en fiscalité et en finances publiques Midi Conference: Economic Substance and Tax Avoidance / Le concept de substance économique et l’évitement fiscal
Full text linkAt the conference, Professor Avi-Yonah presented the evolution of the economic substance doctrine used in US tax law. Subsequently, the panellists discussed the insight that the US experiment can provide in connection with recent changes to the general anti-avoidance rule of the Canada Income Tax Act
Will More Notwithstandings Lead to Disallowances? An Examination of s. 90 of the Constitution Act, 1867
No full textThe Law of Racial Profiling
No full textRacial profiling is one of the most enduring problems in policing. Yet it remains largely under-theorized, which generates important theoretical and practical implications. Racial profiling tends to be construed as an arbitrary detention rather than a form of unconstitutional discrimination. For this reason, the section 15 Charter right to equality plays little to no role in most leading cases on racial profiling. The legal framework that governs racial profiling lacks clarity and can be applied inconsistently. And the remedial landscape associated with racial profiling claims has evolved minimally. This article advances a novel approach to racial profiling that addresses these shortfalls. It demonstrates why racial profiling is wrongful primarily because it embodies discrimination that violates the section 15 Charter right to equality, and secondarily, infringes liberty or privacy interests, and in so doing, breaches other constitutional rights. It offers a simplified legal framework for how courts can better approach racial profiling in constitutional criminal procedure. Drawing on the republican theory of freedom (or republicanism), it shows why racial profiling results in domination—meaning vulnerability to unchecked threats of interference— that courts fail to control. In doing so, it deepens our theoretical understanding of racial profiling and its connection to equality and liberty. The concluding parts of this article contend that courts can incorporate two innovative remedies that can better prevent and address racial profiling: structural injunctions and constitutional settlement agreements. Ultimately, this article offers a new path forward for how racial profiling can be approached in a manner that better safeguards individuals’ fundamental rights and interests
Sex Discrimination, Assimilation, and Austerity: The Untold Story of Canada’s Indian Act, 1975-1985
No full textThis article is about the misunderstood history of a Canadian law for determining Indian status, the decades-long struggle to remedy sex discrimination in the law, and the significance of judges writing history. Since before Canada’s confederation until amendments to the Indian Act in 1985, Indian women, unlike Indian men, lost their Indian status if they married non-Indians. Even with the 1985 amendments, the law still disadvantaged people who traced their Indian status along the female line. Facing a challenge to the law based on sex discrimination, the government argued that the enduring disadvantage to women was the only way to reconcile the equality rights of Indigenous women and the self-governance rights of Indigenous communities. The government’s account of the legislation’s history has been widely accepted by scholars and confirmed in case law. Through scrutiny of newly declassified government records, this article refutes the government’s claim that the 1985 Indian Act amendments were the product of a necessary compromise between competing Indigenous rights claims. Rather, the government used controversies it had provoked about Indigenous self-governance to obscure a legislative objective shared by both Liberal and Conservative governments: to minimize the number of status Indians and thereby shrink the population entitled to federal benefits, weaken Indigenous land claims, and ultimately undermine Indigenous self-governance